Sexual offences:

A strong case for enhanced punishment advocated

by Justice P.H.K. Kulatilaka

[Part 2]

Relevant ministries, National Child Care and Protection Authority, Probation and Child Care Department should give their mind how to organise islandwide awareness programs.

In an exhaustive 'Study on Rape’ carried out by Prof. Savitri Gunasekera and Camena Gunaratne in 1998 recommended the setting up of a National Level Desk at the Police Headquarters as a separate unit to give leadership in coordinating the islandwide response of the police to the problem.

This would entail in giving the officers preliminary training for their work.They further suggested that the capacity of the National Desk could be strengthened by linkage to the Attorney General’s Department, the Police Training Institute and the university.

Statutes

The role of the media, is not merely to report the news. The people must know what the law is all about.That is common sense. At least once a month they should publish the relevant sections of the statutes I have mentioned highlighting the punishments.

The State may be able to make use of the ‘revolting undergrads’ in conducting awareness programs in its attempt at salvaging the nation from this menace of crimes relating to sexual abuse of children. Legal brains of the A,G’s Department will no doubt help in this process.

The perpetrators of child sex offences know that even if they are apprehended they will be out on bail after about two weeks. They continue to be a danger to society. A daily paper on October 4 in its editorial reported of a case where ‘the pervert who abducted a little girl in Ambakolawewa, Kurunegala recently had previously raped a girl and was on bail at the time he committed the second crime’. The journalist commented that ‘same goes for most criminals who harm children and women while roaming freely with court cases pending against them’. The best remedy would be to conclude their cases expeditiously.

Hence I would suggest the authorities to make a change regarding bail to the following effect.

‘When a person suspected of child rape including incest or grave sexual abuse of children is produced before any Magistrate, he should remand such person until the conclusion of the trial.

Provided however, that the High Court may, in exceptional circumstances and for reasons to be recorded release such person on bail at any time prior to the conclusion of the trial’.

According to the definition given in the Penal Code, ‘Child means a person under 18 years’. But in terms of the definition of rape in the Section 363 a dichotomy has been introduced which makes the very purpose of bringing the new law Penal Code [Amendment] Act No.22 of 1995 to curb the rising trend in Child Rape Crime ineffective and meaningless. Dichotomy or duality is to the following effect.

Firstly, ‘a man is said to commit rape who has sexual intercourse with or without her consent when she is under 16’ [The qualification given’ unless the woman is his wife who is over 12 years].

Consent

Secondly,’ a man is said to commit rape who has sexual intercourse with a woman without her consent when she is above 16 even where she is his wife and she is judicially separated’.

In the first category consent is no defence. The prosecution has only to prove the identity of the accused and the act.In the second category the prosecution has to prove that the act was committed without her consent. In most of the cases in the latter group the prosecution fails for the reason that the victim has to face severe cross examination which would end up in an acquittal of the accused.

An easy way out for the rapist is to say that she asked for it.Such a defence is simply the manifestation of blame the victim culture. This mechanism shifts the blame to the victim herself rather than her psychopathic tormentors. Delhi-based journalist Sunitha Vakil says this mindset is a sad reflection of the age-old patriarchal mindset and a male-dominated society.

In the Kandy child rape case the investigations revealed that even though she is presently 17 the alleged rapist used to have sex with her inside his van even when she was 12. Nevertheless the possibility is that his case would fall under the second category. Hence the burden is on the prosecution to prove that the alleged offender had sexual intercourse with the child without her consent. This proof will be beyond reasonable doubt.

Age between 16 and 18 years covers a crucial period in a woman’s life. Most probably the girls of this age group are school going children studying for GCE O’Level or A’Level examinations. This is the period when childhood passes on to adolescence. It is just after a girl had attained her puberty. That she could be easily lured to engage in sex. She could be a victim of procuration for prostitution. The children in this age group have easy access to explicit internet pornography. The Police have found that there are some new developments as sharing of explicit pornography known as ‘sexting’ in England. It is undeniable that the girls between 16 and 18 are an extremely vulnerable group requiring special protection of the law. Hence I strongly urge that section 363 [e] introduced by the Penal Code [Amendment] Act, No. 22 of 1995 be amended by deleting ‘under 16 years of age’ and substituting ‘under 18 years of age’. Then it will not be easy for the alleged rapist to get away for the reason the prosecution has only to prove the identity and the act. Consent of the victim will no longer be a defence.

Even though the mechanism of having a mandatory minimum was introduced by the Legislature with a view to have a deterrent effect on the crime doer as well as the potential predators the Supreme Court did not like the judicial discretion being taken away.

In the case of S.C. Ref.No.03/08, H.C. Anuradhapura, No. 333/o4 it was held ‘that the minimum mandatory sentence in section 364[2] [e] is in conflict with Articles [4][c], 11 and 12[1] of the Constitution and the High Court is not inhibited from imposing a sentence that it deems appropriate in the exercise of its discretion’.

Since the child rape and grave sexual abuse of children crime are increasing, in view of the above interpretation by the apex Court I earnestly hope that judges will act according to their conscience and ignore the mandatory minimum prescribed by the Statute only in exceptional cases.

An inadequate sentence adds to the anguish of the victim who feels that society has not recognised her suffering, particularly when she had to speak about the offending against her that she might have chosen not to rehearse publicly.

Some points to ponder

In fact when the Tangalle gang raping of a destitute child was reported an irate minister very much moved by the dastardly crime said, ‘Hang them twice, not once’. A similar mindset was expressed by the grief-stricken mother of the Delhi rape victim referred to as ‘brave-heart’. Living out the rest of my life will be very hard if these men are not hanged’ [The Telegraph Group, London 2913].

The Indian High Court heard this case expeditiously and pronounced the sentence of death on all the accused except one who was a minor. The same newspaper reported of a case where a Sudanese judge after convicting child rape offenders for ravishing a girl of 14 ordered seven men to be hanged, I would suggest that in child rape cases instead of imposing a rigorous imprisonment for 20 years to substitute a sentence for life with no parole.

Do away with the statutory provisions which permit remissions of the whole or part of the punishments imposed on the convicted by Court in all cases relating to sexual abuse of children. The readers will remember the case of underworld criminal Gonawala Sunil who was serving a heavy jail term for gang raping a well-known doctor’s teenage daughter. He was let out from prison on presidential pardon. He was made a Justice of the Peace. He was vested with powers to step into any Police Station and dictate terms. Credit must be given to the then President for giving presidential applause to a predator of a child rape crime.

Whipping

Whipping as a mode of punishment will no doubt be a deterrent to any crime doer. This mode of punishment was abolished some time back as it was considered to be a degrading and inhuman punishment. Nevertheless in view of the dangerous trend now prevalent in society no sane person will object to bringing back whipping as a mode of punishment to predators of child rape and grave sexual abuse of children.

After the Delhi rape and murder case and a whole lot of similar cases threatening Indian society the Indian Parliament is seriously considering introducing chemical castration to the statute book. California, Florida and Louisiana in the United States an Poland are some of the countries that impose chemical castration as a mode of punishment for child molestation.

The Sri Lankan community may not object to introducing chemical castration to predators convicted for child rape at least as a temporary measure to combat the ever rising trend in child rape which would destabilise the society.

These are my humble suggestions having studied the ongoing trends that pose a dangerous menacing problem to the Sri Lankan community as a whole.It may be your child tomorrow. You will never know when and where a predator would strike. ‘Prevention is better than cure,’ they say. The danger here is that there is no cure once the damage is done. The poor child suffers physically and mentally for the rest of her life. Who is at fault? The answer is yours.

The writer is former Director of the Sri Lanka Judges Institute.

Concluded